SHALL  WE  HATE  A POSTAL  TELEGRAPH? 


OR, 


Will  Congress  Regulate  Inter-State  Telegraph  Charges? 


AN  ARGUMENT 


DEMONSTRATING  THAT 


Congress  has  the  Right  to  “Regulate”  Telegraphing  by 
Fixing  Maximum  Rates  for  Telegrams  between 
Points  in  different  States; 


gesting  an  Amendment  to  the  Inter-State  Commerce  Act. 


ess  of  Thomas  McGill  & Co.,  Law  Printers,  Washington,  1).  C. 


AND 


ci> 


2 

po 

tT  i i i I / f V 

0 , ,|  , 1 1 ii  (if 

er 

House  of  Representatives, 
Washington,  D.  C.,  December  15th,  1887. 
My  dear  Sir  : 

The  demand  for  a Postal  Telegraph  is  acquiring  in- 
creased force  by  the  greater  extortions  of  the  Gould 
System  following  the  collapse  of  organized  opposition 
to  that  gigantic  monopoly. 

It  is  apparent  that  something  should  be  done  to 
relieve  the  people  ; but  the  objections  to  a Postal  Tel- 
egraph System  are  cogent  and  various. 

One  of  the  most  important  of  these  is  that,  although 
the  Morse  patents  have  expired,  all  the  best  and  most 
valuable  forms  of  batteries,  instruments,  etc.,  are  pro- 
tected by  more  recent  patents,  which  the  Government 
could  not  use  without  the  consent  of  the  owners.  It 
would  be  necessary  to  confiscate  these  patents  or  to 
purchase  them  at  a frightful  expense. 

A genuine  apprehension  is  felt  in  a great  many 
quarters  at  the  idea  of  increasing,  by  a force  so  enor- 
mous, the  patronage  of  the  Federal  Government  as 
would  be  involved  in  the  employment  of  the  requisite 
force  to  conduct  a telegraph.  It  is  probable,  and  in- 
deed certain  that  the  Government  would  be  obliged 
to  extend  a Postal  Telegraph  until  there  were  as  many 
telegraph  stations  as  there  are  now  post-office  stations. 

The  representatives  of  the  people  might  feel  that  the 
faith  of  the  Government  was  pledged  to  purchase  all 
the  telegraph  lines  which  accepted  the  Act  of  1866, 
should  the  Government  undertake  to  establish  a Postal 
Telegraph.  The  Government  could  transact  business 
at  a loss,  supplying  the  deficit  by  taxation  ; not  so  the 
private  companies,  who  would  be  driven  out  of  business. 
Can  the  Government  prohibit  their  business  at  a loss  of 

27  2.5  b 


2 


their  entire  properties,  and  at  the  same  time  refuse  to 
buy  under  the  Act  of  1866?  Are  we  prepared  to  buy  ? 

The  arguments  in  favor  of  a Government  railroad  line 
are  quite  as  strong  as  those  in  favor  of  a Government 
telegraph  line,  and  yet  however  few  would  view  the 
adoption  of  the  former  by  the  Government  without  the 
greatest  apprehension. 

Not  the  least  objection  to  the  proposed  plan  of  a 
Postal  Telegraph,  is  the  great  delay  involved,  whether 
the  plan  adopted  be  a purchase  of  existing  lines  under 
the  provisions  of  the  Act  of  1866,  or  to  build  lines  for 
the  Government  itself. 

It  would  seem,  therefore,  that  every  consideration  of 
prudence  and  expediency  would  induce  the  representa- 
tives of  the  people  to  select  another  way  of  curbing 
the  exactions  of  this  monopoly  should  such  exist. 

It  is  believed  that  an  amendment  of  the  Inter-State 
Commerce  Act,  extending,  under  proper  restrictions, 
the  control  of  the  Commissioners  to  inter-State  and  for- 
eign telegraphing,  would  accomplish  every  purpose 
desired  without  involving  the  Government  in  a difficult 
and  dangerous  experiment,  the  indirect  effects  of  which 
might  be  very  detrimental  to  our  institutions. 

In  that  connection,  your  attention  is  respectfully 
invited  to  the  annexed  argument,  intended  to  show  that 
Congress  has  jurisdiction  to  establish  maximum  rates 
of  charges  for  the  transmission  of  foreign  and  inter- 
state telegrams.  Yours,  very  respectfully, 

John  M.  Glover,  M.  C . 


Commerce 


AN  ARGUMENT 

THAT 

Congress  has  the  Right  to  “ Regulate  ” Telegraphing,  by 
t Fixing  Maximum  Rates  for  Telegrams  Between 

Points  in  Different  States. 

A. 

Section  8 of  article  i of  the  Federal  Constitution 
expressly  confers  on  Congress  the  right  to  regulate  com- 
merce among  the  several  States.  By  a long  series  of 
decisions,  extending  through  many  years,  it  has  been 
definitely  and  finally  decided  that  the  “commerce  among 
the  several  States  ’ ’ which  may  be  regulated  by  Con- 
gress includes  transportation  from  State  to  State)  by 
railroads. 

This  being  evident,  the  question  arises — 

Do  telegraph  companies  stand  on  the  same  plane  in 
respect  to  the  right  of  Congress  to  ‘ ‘ regulate’  ’ inter- 
5 State  commerce  ? 

That  they  do,  will  be  abundantly  demonstrated  by 
reference  to  the  following  authorities  : 

Western  Union  Tel.  Co.  v.  Atlantic  & Pacific 
l Tel.  Co.,  5 Nevada,  102. 

Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co., 
96  U.  S.,  1. 

Western  Union  Tel.  Co.  v.  The  State  of  Texas, 
105  U.  S.,  460. 

Western  Union  Tel.  Co.  v.  Pendleton,  122  U. 

S-,  347- 

Communication  by  the  telegraph  is  a branch  of  com- 
mercial intercourse  within  the  meaning  of  that  clause 


4 


of  the  United  States  Constitution  which  gives  Congress 
power  to  regulate  commerce,  &c.,  among  the  several 
States.  (Western  Union  Tel.  Co.  v.  Atlantic,  &c.,  Tel. 
Co.,  5 Nev.,  102.) 

“These  powers  keep  pace  with  the  progress  of  the 
country,  and  adapt  themselves  to  the  new  developments 
of  times  and  circumstances.  They  extend  from  the 
horse  with  its  rider  to  the  stage  coach,  from  the  coach 
and  the  steamboat  to  the  railroad,  and  from  the  railroad 
to  the  telegraph,  as  these  new  agencies  are  successively 
brought  into  use  to  meet  the  demands  of  increasing 
population  and  wealth.  They  were  intended  for  the 
government  of  the  business  to  which  they  relate,  at  all 
times  and  under  all  circumstances.  As  they  were  in- 
trusted to  the  general  Government  for  the  good  of  the 
nation,  it  is  not  only  the  right  but  the  duty  of  Con- 
gress to  see  to  it  that  intercourse  among  the  States  and 
the  transmission  of  intelligence  are  not  obstructed  or 
unnecessarily  encumbered  by  State  legislation.  The 
electric  telegraph  marks  an  epoch  in  the  progress  of 
time.  In  a little  more  than  a quarter  of  a century  it 
has  changed  the  habits  of  business,  and  become  one  of 
the  necessities  of  commerce.  It  is  indispensable  as  a 
means  of  intercommunication,  but  especially  it  is  so  in 
commercial  transactions.  The  statistics  of  the  business 
before  the  recent  reduction  in  rates,  show  that  more 
than  eighty  per  cent,  of  all  the  messages  sent  by  tele- 
graph related  to  commerce.  Goods  are  sold  and  money 
paid  upon  telegraphic  orders.  Contracts  are  made  by 
telegraphic  correspondence,  cargoes  secured,  and  the 
movement  of  ships  directed.  The  telegraphic  announce- 
ment of  the  markets  abroad  regulates  prices  at  home, 
and  a prudent  merchant  rarely  enters  upon  an  impor- 
tant transaction  without  using  the  telegraph  freely  to 
secure  information. 

“It  is  not  only  important  to  the  people,  but  to  the 
Government.  By  means  of  it  the  heads  of  the  depart- 
ments in  Washington  are  kept  in  close  communication 
with  all  their  various  agencies  at  home  and  abroad, 
and  can  know  at  almost  any  hour,  by  inquiry,  what  is 
transpiring  anywhere  that  affects  the  interest  they  have 
in  charge.  Under  such  circumstances,  it  cannot  for  a 


5 


moment  be  doubted  that  this  powerful  agency  of  com- 
merce and  intercommunication  comes  within  the  con- 
trolling power  of  Congress,  certainly  as  against  hostile 
State  legislation.  In  fact,  from  the  beginning  it  seems 
to  have  been  assumed  that  Congress  might  aid  in  devel- 
oping the  system  ; for  the  first  telegraph  line  of  any 
considerable  extent  ever  erected  was  built  between 
Washington  and  Baltimore,  only  a little  more  than 
thirty  years  ago,,  with  money  appropriated  by  Congress 
for  that  purpose,  5 Stats,  at  Large,  618  ; and  large  dona- 
tions of  land  and  money  have  since  been  made  to  aid  in 
the  construction  of  other  lines.  12  Stats,  at  Large, 
489,  772;  13  Stats,  at  Large,  365;  14  Stats,  at  Large, 
292.” 

Pensacola  Tel.  Co.  v.  Western,  &c.,  Tel.  Co.,  96 
U.  S.,  1. 

In  Western  Union  Tel.  Co.  v.  State  of  Texas  (105 
U.  S.,  464),  Chief-Justice  Waite,  in  rendering  the  deci- 
sion of  the  Court,  said  : 

“In  Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co. 
(96  U.  S.,  1)  this  Court  held  that  the  telegraph  was  an 
instrument  of  commerce,  and  that  telegraph  companies 
were  subject  to  the  regulating  power  of  Congress  in 
respect  to  their  foreign  and  inter-State  business.  A tel- 
egraph company  occupies  the  same  relation  to  com- 
merce as  a carrier  of  messages  that  a railroad  company 
does  as  a carrier  of  goods.  Both  companies  are  instru- 
ments of  commerce,  and  their  business  is  commerce 
itself.  They  do  their  transportation  in  different  ways, 
and  their  liabilities  are,  in  some  respects,  different;  but 
they  are  both  indispensable  to  those  engaged  to  any 
considerable  extent  in  commercial  pursuits.” 

“In  these  cases  (referring  to  Pensacola  Tel.  Co.  v. 
Western  Union  Tel.  Co.,  96  U.  S.,  1 ; and  Western 
Union  Tel.  Co.  v.  Texas,  105  U.  S.,  460)  the  supreme 
authority  of  Congress  over  the  subject  of  commerce 
by  the  telegraph  with  foreign  countries  or  among  the 
States,  is  affirmed,  whenever  that  body  chooses  to  exert 
its  power;  and  it  is  also  held  that  the  States  can  im- 


6 


pose  no  impediments  to  the  freedom  of  that  commerce. 
* * * The  object  of  vesting  the  power  to  regulate 
commerce  in  Congress  was  to  secure,  with  reference 
to  its  subjects,  uniform  regulations,  where  such  uni- 
formity is  practicable,  against  conflicting  State  legis- 
lation. Such  conflicting  legislation  would  inevitably 
follow  with  reference  to  telegraphic  communication  if 
each  State  was  vested  with  power  to  control  them  be- 
yond its  own  limits.” 

Field,  J.,  in  Western  Union  Tel.  Co.  v.  Pendle- 
ton,  i22  U.  S.,  347,  358. 


B. 

It  being  established  that  telegraphs  stand  on  the  same 
plane  with  railroads,  in  respect  to  the  power  of  Congress 
to  regulate  inter-State  commerce,  it  remains  to  be  con- 
sidered whether  this  power  to  regulate  includes  the  power 
to  fix  maximum  rates  for  the  transmission  of  messages 
between  points  in  different  States. 


I. 

The  common-law  right  of  the  legislative  authority  to 
fix  maximum  charges  for  services  rendered  in  a 
public  employment,  or  for  the  use  of  property  in 
which  the  public  has  an  interest,  is  clear. 

“ In  countries  where  the  common  law  prevails  it  has 
been  customary  for  the  legislature  to  declare  what  shall 
be  a reasonable  compensation  under  such  circumstances, 
(i.  e .,  concerning  a public  interest,)  or,  perhaps,  more 
properly  speaking,  to  fix  a maximum  beyond  which  any 
charge  made  would  be  unreasonable.  Undoubtedly,  in 
mere  private  contracts,  relating  to  matters  in  which  the 
public  has  no  interest,  what  is  reasonable  must  be  ascer- 
tained judicially.  But  this  is  because  the  legislature  has 
no  control  over  such  a contract.  So,  too,  in  matters 
which  do  affect  the  public  interest,  and  as  to  which  legis- 
lative control  may  be  exercised,  if  there  are  no  statutory 
regulations  upon  the  subject,  the  Courts  must  determine 
what  is  reasonable.  The  controlling  fact  is  the  power 


7 


to  regulate  at  all.  If  that  exists,  the  right  to  establish 
the  maximum  of  charge,  as  one  of  the  means  of  regu- 
lation, is  implied.  In  fact,  the  common-law  rule  which 
requires  the  charge  to  be  reasonable  is  itself  a regu- 
lation as  to  price.  Without  it,  the  owner  could  make 
his  rates  at  will,  and  compel  the  public  to  yield  to  his 
terms  or  forego  the  use.  But  a mere  common-law  regu- 
lation of  trade  or  business  may  be  changed  by  statute. 
* * * To  limit  the  rate  of  charges  for  services  ren- 
dered in  a public  employment,  or  for  the  use  of  prop- 
erty in  which  the  public  has  an  interest,  is  only  chang- 
ing a regulation  which  existed  before.” 

Munn  v.  People  of  Illinois,  94  U.  S.,113. 

“Under  these  (the  police)  powers  the  Government 
regulates  the  conduct  of  its  citizens  one  towards  another, 
and  the  manner  in  which  each  shall  use  his  own  prop- 
erty, when  such  regulation  becomes  necessary  for  the 
public  good.  In  their  exercise  it  has  been  customary 
in  England,  from  time  immemorial,  and  in  this  country 
from  its  first  colonization,  to  regulate  ferries,  common 
carriers,  hackmen,  bakers,  millers,  wharfingers,  innkeep- 
ers, &c.,  and  in  so  doing  to  fix  a maximum  of  charge  to 
be  made  for  services  rendered,  accommodations  fur- 
nished, and  articles  sold.  To  this  day  statutes  are  to 
be  found  in  many  of  the  States  upon  some  or  all  of 
these  subjects.  With  the  Fifth  Amendment  in  force, 
Congress,  in  1820,  conferred  power  upon  the  city  of 
Washington  ‘to  regulate  * * * the  rates  of  wharf- 
age at  private  wharves,  * * * the  sweeping  of 

chimneys,  and  to  fix  the  rates  of  fees  therefor,  and  the 
weight  and  quality  of  bread,’  (3  Stats,  at  Large,  587, 
sec.  7,)  and,  in  1848,  ‘to  make  all  necessary  regula- 
tions respecting  hackney  carriages  and  the  rates  of  fare 
of  the  same,  and  the  rates  of  hauling  by  cartmen, 
wagoners,  carmen,  and  draymen,  and  the  rates  of  com- 
mission of  auctioneers.’  (9  Stats,  at  Large,  224,  sec.  2.)” 

Munn  v.  People  of  Illinois,  (above.) 

(Where  see  English  authorities  cited  in  support  of  the 
common-law  right  of  the  public  to  limit  charges  for  the 
use  of  property  clothed  with  a public  interest.) 


8 


“ Common  carriers  exercise  a sort  of  public  office, 
and  have  duties  to  perform  in  which  the  public  is  in- 
terested. (6  How.,  U.  S. , 382.)  Their  business  is 
therefore  ‘affected  with  a public  interest’  within  the 
meaning  of  the  doctrine  which  Lord  Hale  has  so  forci- 
bly stated  in  De  Portibus  Maris.  (1  Harg.  E.  Tr.,  7 8.)” 

Munn  v.  People  of  Illinois  (above.) 

II. 

And  this  common-law  right  is  possessed  by  the  people 
of  the  United  States  and  may  be  exercised  by  them 
through  their  appointed  agency. 

“ When  the  people  of  the  United  Colonies  separated 
from  Great  Britain,  they  changed  the  form  but  not  the 
substance  of  their  government.  They  retained  for  the 
purposes  of  government  all  the  powers  of  the  British 
Parliament,  and  through  their  State  constitutions  or 
other  forms  of  social  compact,  undertook  to  give  prac- 
tical effect  to  such  as  they  deemed  necessary  for  the 
common  good  and  the  security  of  life  and  property. 
All  the  powers  which  they  retained  they  committed  to 
their  respective  States,  unless  in  express  terms,  or  by 
implication,  reserved  to  themselves.  Subsequently, 
when  it  was  found  necessary  to  establish  a National 
Government  for  National  purposes,  a part  of  the  powers 
of  the  States,  and  of  the  people  of  the  States,  was 
granted  to  the  United  States.  This  grant  operated  as 
a further  limitation  upon  the  powers  of  the  States,  so 
that  now  the  governments  of  the  States  possess  all  the 
powers  of  the  Parliament  of  England,  except  such  as 
have  been  delegated  to  the  United  States  or  reserved 
by  the  people.  The  reservations  by  the  people  are 
shown  in  the  prohibitions  of  the  constitutions.” 

Munn  v . People  of  Illinois  (above.) 

In  Chicago,  Burlington  & Quincy  R.  R.  Co.  v.  Cutts, 
94  U.  S.,  155,  a State  statute  dividing  the  railroads  of 
the  State  into  classes,  according  to  business,  and  estab- 
lishing a maximum  of  rates  for  each  of  the  classes,  was 
held  not  repugnant  to  the  constitutional  provision  as  to 
regulation  of  inter-State  commerce.  The  Court  say  : 

“In  1691,  during  the  third  year  of  the  reign  of 


9 


William  and  Mary,  Parliament  provided  for  the  regu- 
lation of  the  rates  of  charge  by  common  carriers.  This 
statute  remained  in  force,  with  some  amendment,  until 
1827,  when  it  was  repealed,  and  it  has  never  been  re- 
enacted. No  one  supposes  that  the  power  to  restore  its 
provisions  has  been  lost.  A change  of  circumstances 
seemed  to  render  such  a regulation  no  longer  necessary, 
and  it  was  abandoned  for  the  time.  The  power  was 
not  surrendered.  That  remains  for  future  exercise  when 
required. 

‘ ‘ So  here,  the  power  of  regulation  existed  from  the 
beginning,  but  it  was  not  exercised  until,  in  the  judg- 
ment of  the  body  politic,  the  condition  of  things  was 
such  as  to  render  it  necessary  for  the  common  good. 
The  objection  that  the  statute  complained  of  is  void 
because  it  amounts  to  a regulation  of  commerce  among 
the  States,  has  been  sufficiently  considered  in  the  case 
of  Munn  v.  Illinois.  This  road,  like  the  warehouse  in 
that  case,  is  situated  within  the  limits  of  a single  State. 
Its  business  is  carried  on  there,  and  its  regulation  is  a 
matter  of  domestic  concern.  It  is  employed  in  State  as 
well  as  in  inter-State  commerce,  and  until  Congress  acts 
the  State  must  be  permitted  to  adopt  such  rules  and 
regulations  as  may  be  necessary  for  the  promotion  of  the 
general  welfare  of  the  people  within  its  own  jurisdic- 
tion, even  though  in  so  doing  those  without  may  be 
injuriously  affected.  ’ ’ 

III. 

Therefore,  the  common-law  right  of  the  legislative 
authority  to  fix  maximum  charges  for  services  ren- 
dered in  a public  employment  being  shown  to  have 
vested  in  the  people  of  the  United  States,  and  by 
the  Constitution  the  power  to  regulate  inter-State 
commerce  being  vested  in  Congress,  to  the  exclu- 
sion of  the  States,  it  will  be  seen,  by  a review  of 
the  authorities  hereafter  cited,  that  no  doubt  has 
ever  existed  in  the  judicial  mind  that  the  word 
“regulate,”  as  used  in  the  Constitution,  meant  to 
“wholly  regulate,”  and  that  it  carries  with  it  the 
right  to  fix  reasonable  maximum  rates  and  charges 
for  such  service”to  the  public. 


10 


u In  the  matter  of  inter-State  commerce,  the  United 
States  are  but  one  country,  and  are  and  must  be  subject 
to  one  system  of  regulations,  and  not  to  a multitude  of 
systems.” 

Bradley,  J.,  in  Robbins  v.  Shelby  Taxing  Dis- 
trict, 120  U.  S.,  489,  494. 

“It  has  been  contended  by  the  counsel  for  the  appel- 
lant that,  as  the  word  “to  regulate”  implies  in  its  na- 
ture full  power  to  be  regulated,  it  excluded,  necessarily, 
the  action  of  all  others  that  would  perform  the  same 
operation  on  the  same  thing.  That  regulation  is  de- 
signed for  the  entire  result,  applying  to  those  parts 
which  remain  as  they  were  as  well  as  to  those  which 
are  altered.  It  produces  a uniform  whole,  which  is  as 
much  disturbed  and  deranged  by  changing  what  the 
regulating  power  designs  to  leave  untouched  as  that  on 
which  it  has  operated. 

There  is  great  force  in  this  argument,  and  the  Court 
is  not  satisfied  that  it  has  been  refuted.” 

Marshall,  C.  J.,  in  Gibbons  v.  Ogden,  9 Wheat., 
1,  209,  (where  an  injunction  decree  based  on 
a State  law  conflicting  with  the  power  of  Con- 
gress to  regulate  commerce  was  reversed.) 

“The  ‘power  to  regulate  commerce,’  here  meant 
to  be  granted,  was  that  power  to  regulate  commerce 
which  previously  existed  in  the  States.  But  what  was 
that  power  ? The  States  were  unquestionably  supreme, 
and  each  possessed  that  power  over  commerce  which 
is  acknowledged  to  reside  in  every  sovereign  State. 
The  power  of  a sovereign  State  over  commerce,  there- 
fore, amounts  to  nothing  more  than  a power  to  limit 
and  restrain  it  at  pleasure.  And  since  the  power  to 
prescribe  the  limits  to  its  freedom  necessarily  implies 
the  power  to  determine  what  shall  remain  unrestrained, 
it  follows  that  the  power  must  be  exclusive.  It  can 
reside  but  in  one  potentate,  and  hence  the  grant  of  the 
power  carries  with  it  the  whole  subject,  leaving  noth- 
ing for  the  State  to  act  upon.” 

Johnson,  J.,  in  Gibbons  v.  Ogden,  9 Wheat.,  1, 
227. 


ii 


“The  power  to  regulate  commerce  covers  a wide  field 
and  embraces  a great  variety  of  subjects.  Some  of 
these  subjects  call  for  uniform  rules  and  National  legis- 
lation ; others  can  be  best  regulated  by  rules  and  pro- 
visions suggested  by  the  varying  circumstances  of 
different  localities,  and  limited  in  their  operation  to 
such  localities  respectively.  To  this  extent  the  power 
to  regulate  commerce  may  be  exercised  by  the  States. 
Whether  the  power  in  any  given  case  is  vested  exclu- 
sively in  the  General  Government,  depends  upon  the 
nature  of  the  subject  to  be  regulated.” 

Gilman  v.  City  of  Philadelphia,  3 Wall.,  713. 

‘ ( It  is  not  the  railroads  themselves  that  are  regulated 
by  this  act  of  the  Illinois  Legislature  so  much  as  the 
charge  for  transportation;  and  if  each  one  of  the  States 
through  whose  territories  these  goods  are  transported 
can  fix  its  own  rules  for  prices,  for  modes  of  transit, 
for  times  and  modes  of  delivery,  and  all  the  other  inci- 
dents of  transportation  to  which  the  word  ‘ regulation  ’ 
can  be  applied,  it  is  readily  seen  that  the  embarrass- 
ments upon  inter-State  transportation,  as  an  element  of 
inter-State  commerce,  might  be  too  oppressive  to  be 
submitted  to.  It  was  to  meet  just  such  a case  that  the 
commerce  clause  of  the  Constitution  was  adopted.” 

Wabash,  &c.,  R’y  Co.  v.  Illinois,  118  U.  S.,  551, 
572. 

In  this  case  a State  statute  enacted  that  if  any  railroad 
company  should  within  that  State  charge  or  receive  for 
transporting  passengers  or  freight  of  the  same  class  the 
same  or  a greater  rate  than  it  did  for  a longer  distance,  it 
should  be  liable  to  a penalty  for  unjust  discrimination. 

Held,  that  such  statute  must  be  construed  to  include 
a transportation  of  goods  under  one  contract,  and  by 
one  voyage,  from  the  interior  of  the  State  to  another 
State,  and  hence  was  unconstitutional. 

The  Court  say  : 

“It  is  not,  and  never  has  been,  the  deliberate  opinion 
of  a majority  of  this  Court  that  a statute  of  a State 
which  attempts  to  regulate  the  fares  and  charges  by 


12 


railroad  companies  within  its  limits,  for  a transporta- 
tion which  constitutes  a part  of  commerce  among  the 
States,  is  a valid  law.” 

This  was  stated  with  special  reference  to  certain  lan- 
guage used  in  Munn  v.  Illinois,  94  U.  S.,  113,  135,  and 
Peik  v.  Chicago  & Northwestern  R’y,  94  U.  S.,  164, 
177-8 ; as  to  which  cases  the  Court  say  (p.  569) : 

‘ 1 Though  it  is  true  that,  as  incidental  or  auxiliary  to 
these,  the  question  of  the  exclusive  right  of  Congress 
to  make  such  regulations  of  charges  as  any  legislative 
power  had  the  right  to  make,  to  the  exclusion  of  the 
States,  was  presented,  it  received  but  little  attention  at 
the  hands  of  the  Court.” 

The  Court  also  say  : 

“ Of  the  justice  or  propriety  of  the  principle  which 
lies  at  the  foundation  of  the  Illinois  statute,  it  is  not 
the  province  of  this  Court  to  speak.  As  restricted  to 
a transportation  which  begins  and  ends  within  the 
limits  of  the  State  it  may  be  very  just  and  equitable, 
and  it  certainly  is  the  province  of  the  State  Legislature 
to  determine  that  question.  But,  when  it  is  attempted 
to  apply  to  transportation  through  an  entire  series  of 
States  a principle  of  this  kind,  and  each  one  of  the  States 
shall  attempt  to  establish  its  own  rates  of  transportation, 
its  own  methods  to  prevent  discriminations  in  rates,  or 
to  permit  it,  the  deleterious  influence  upon  the  freedom 
of  commerce  among  the  States  and  upon  the  transit  of 
goods  through  those  States  cannot  be  overestimated. 
That  this  species  of  regulation  is  one  which  must  be , if 
established  at  all , of  a general  and  National  character , 
and  cannot  be  safely  and  wisely  remitted  to  local  rules 
and  regulations,  we  think  it  clear,  from  what  has  already 
been  said.  If  it  be  a regulation  of  commerce , as  we 
think  we  have  demonstrated  it  w,  it  must  be  of  that  Na- 
tional character , and  the  regulation  can  only  appropri- 
ately exist  by  general  rules  and  principles,  which  demand 
that  it  should  be  done  by  the  Congress  of  the  United 
States  under  the  commerce  clause  of  the  Constitution.” 


13 


So  in  Wabash,  etc.,  R’y  Co.  v.  Illinois  (above),  refer- 
ring to  the  case  of  the  State  Freight  Tax,  15  Wall., 
232,  it  is  said  : 

“It  is  impossible  to  see  any  distinction,  in  its  effect 
upon  commerce  of  either  class,  between  a statute  which 
regulates  the  charges  for  transportation  and  a statute 
which  levies  a tax  for  the  benefit  of  the  State  upon  the 
same  transportation.  ’ ’ 


IV. 

The  principle  that  the  power  is  in  Congress  to  fix  max- 
imum charges  for  inter-State  railroad  transportation 
has  also  been  frequently  upheld  in  Federal  and 
State  decisions. 

“The  following  propositions  may  now  be  laid  down  as 
settled  : The  transportation  of  merchandise  from  a place 
in  one  State  to  a place  in  another  is  commerce  among 
the  States.  To  fix  or  Limit  the  charges  for  such  trans- 
portation is  to  regulate  commerce.  A statute  fixing  or 
limiting  such  charges  for  transportation  from  places  in 
one  State  to  places  in  other  States  is  a regulation  of 
commerce  among  the  States.  The  power  to  regulate 
such  commerce  is  vested  by  the  Constitution  in  Con- 
gress. ’ ’ 

Kaeiser  v.  Illinois  Cent.  R.  Co.,  U.  S.  Cir.  Ct., 
S.  D.  Iowa,  18  Fed.  Rep.,  151;  (holding  a 
State  statute  providing  a tariff  of  maximum 
charges  for  the  transportation  of  freight  and 
passengers  by  railroad  to  be  unconstitutional 
in  so  far  as  it  related  to  through  shipments  over 
inter-State  lines.) 

To  same  effect  Railroad  Commissioners  v.  Railroad 
Co.,  22  So.  Car.,  220,  where  it  is  said  (adopting  the 
principle  laid  down  in  Kaeiser  v,  R.  Co.,  above) — 

“Any  regulation  of  freight  for  the  transportation  from 
Columbia,  in  this  State,  to  points  in  the  State  of  North 


14 


Carolina,  by  the  statutes  of  this  State,  is  beyond  the 
power  of  the  State,  because  of  its  being  an  invasion  of 
the  power  exclusively  vested  in  Congress  by  the  Con- 
stitution of  the  United  States.” 

A State  board  of  railroad  commissioners  has  no  power 
to  regulate  or  interfere  with  the  transportation  of  per- 
sons or  merchandise  by  a steamship  company  between 
points  within  the  States,  if  they  be  in  transit  to  or  from 
other  States,  or  when  in  navigating  the  ocean  the  vessel 
goes  beyond  a marine  league  from  the  shore.  The 
power  has  been  conferred  upon  Congress,  and  is  exclu- 
sive. 

Field,  J.,  in  Pacific  Coast  Steamship  Co.  v.  Board 
of  R.  R.  Commissioners,  U.  S.  Cir.  Ct.,  D.  Cal., 
io  Fed.  Rep.,  io,  (where  an  injunction  was 
allowed  to  restrain  the  commissioners  from  es- 
tablishing rates  of  charges  for  passengers  and 

^ freight. ) 

A State  statute  attempting  to  control  the  rates  of 
compensation  upon  the  transportation  of  persons  and 
commodities  in  transit  from  one  State  to  another,  held 
unconstitutional. 

Uouisville  & N.  R.  Co.  v.  R.  R.  Commissioners 
of  Tenn.,  U.  S.  Cir.  Ct.,  M.  D.  Tenn.,  19  Fed. 
Rep.,  679. 

A Mississippi  statute  held  unconstitutional,  in  so  far 
as  it  assumed  to  regulate  the  charges  of  transportation 
on  any  railroad  not  strictly  and  entirely  within  Missis- 
sippi. 

Illinois  Central  R.  R.  Co.  v . Stone,  U.  S.  Cir.  Ct. , 
S.  D.  Miss.,  20  Fed.  Rep.,  468. 

The  regulation  by  a State  commission  of  transporta- 
tion from  points  within  to  points  without  the  State  held 


15 


a violation  of  the  provisions  of  the  Constitution  giving 
Congress  power  to  regulate  commerce. 

Mobile  & O.  R.  Co.  v.  Sessions,  U.  S.  Cir.  Ct., 
S.  D.  Miss.,  28  Fed.  Rep.,  592,  (where  the  Court 
say: 

u Does  the  State  of  Mississippi,  by  the  act  of  the 
Legislature,  or  through  its  commission,  have  the  power 
to  regulate,  by  fixing  charges  for  such  transportation, 
such  commerce  as  that  specified  in  Rule  9 above  set 
out?  That  this  power  is  wholly  vested  in  Congress  is 
in  my  opinion  settled.”) 

Any  State  statute  fixing  or  limiting  the  charges  for 
transportation  of  goods  from  a place  in  one  State  to  a 
place  in  another,  held  an  attempt  to  regulate  commerce 
between  the  States,  and  hence  unconstitutional. 

Hardy  v.  Atchison,  Topeka  & Santa  Fe  R.  R. 
Co.,  32  Kan.,  698. 

The  fixing  of  rates  of  freight  shipped  from  one  State 
into  another  is  a regulation  of  commerce. 

Carton  v.  Illinois  Central  R.  R.  Co.,  59  Iowa,  148, 
(holding  unconstitutional  the  following  provi- 
sion of  an  Iowa  statute  : 

“The  tariff  of  rates  established  in  the  following 
schedule  shall  be  considered  the  basis  on  which  to 
compute  the  compensation  for  transporting  freights, 
goods,  merchandise,  or  property  over  any  kind  of  rail- 
road within  this  State.”) 


\ 


John  M.  Glover. 


